Parvez Ali Ahmed Vs the State of Assam and 5 Ors.

Heard Mr. B. D. Das, the learned Senior counsel assisted by Mr. H. Rohman, the learned counsel appearing on behalf of the petitioner and Mr. H. K. Das, the learned Standing counsel appearing on behalf of the Gauhati High Court. I have also heard Mr. M. Khan, the learned counsel appearing on behalf of the respondent No.6.

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The issue involved in the present of writ petition is the challenge to the order bearing No.250 dated 09.12.2024 issued by the Chief Judicial Magistrate, South Salmara, Mankachar (hereinafter referred to as ‘the impugned order’) primarily on the ground that the respondent authorities in order to appoint the respondent No.6 had given very high marks in the viva-

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voce test compared to all other candidates including the petitioner that too without prescribing such type of marks prior to the advertisement or till such date the respondent Selection Board had learnt that the petitioner herein had secured high marks in the test so conducted by the District Transport Authority.

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To ascertain the merits of the said challenge, it is relevant to take note of the facts which led to the filing of the instant writ petition.

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On 20.05.2022, the Chief Judicial Magistrate who is the respondent No.5 in the instant proceedings had issued an advertisement calling from intending eligible candidates for filling up of various posts. The subject matter of the instant writ petition pertains to the post of driver. In the said advertisement, the details in respect to the driver being relevant is reproduced herein under.

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Sl. No.	Name of Post	No. of Posts	Category	Scale of Pay with Grade Pay	Educational Qualifications
2.	Driver	01	Unreserved-01	Rs.14000-49000 + GP Rs.5200 (PB-2)	Minimum Class VIII standard. Candidates must hold valid Driving License to drive LMV/Four wheeler vehicles for not less than 5 (five) years.

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From the above quoted portion, it would be seen that the post in question was for an unreserved category candidate and the educational qualifications necessary was minimum Class-VIII standard and a candidate

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must hold valid Driving License to drive LMV/four wheeler vehicles for not less than 5 years. Clause-11 of the said advertisement further stipulated that those candidates applying for the post of Driver shall have to appear in a Driving Test to be conducted by the District Transport Authority, South Salmara, Mankachar and viva voce. Certain records were placed before this Court when this Court heard this matter on 01.05.2025 wherefrom it would be seen that a resolution was adopted on 18.11.2024 that the 60 marks would be allotted for viva voce. It is not out of place to mention that this resolution was adopted on 18.11.2024 after the District Transport Authority carrying out the assessment of the various candidates who applied for the post of the Driver had assessed the petitioner at 70 marks out of 100 and the respondent No.6 at 40 marks out of 100.

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This Court enquired with the learned Standing counsel appearing on behalf of the Gauhati High Court as to whether there was any resolution adopted prior or immediately after the issuance of the advertisement as to how the marks would be allocated towards the Driving Test as well as for viva voce. No such resolution was adopted is the submission so made by the learned Standing counsel appearing on behalf of the Gauhati High Court. The learned counsel further submitted that it was only on 18.11.2024 that a resolution was adopted to hold the viva voce test for 60 marks in view of the fact that the District Transport Authority had already assessed the various candidates for the post of the Driver upon 100 marks i.e. 30 marks for Traffic Signal Test and 70 marks for Driving Test.

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Proceeding further, it is relevant to take note of that in terms with the resolution so adopted on 18.11.2024, the respondent No.6 was granted 55

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marks out of 60 whereas the petitioner was granted only 20 marks. The records so produced today before this Court reveals that the Selection Board consisting of three members had given individual marks to the candidates out of 20 and the aggregate of the marks given by the three members was taken into consideration. The petitioner was given 20 marks by the three members out of 60 whereas the respondent No.6 was given 55 marks out of 60 and thereby the respondent No.6 marched ahead with 95 marks compared to the petitioner receiving 90 marks. It is under such circumstances, the present writ petition has been filed.

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This Court vide an order dated 11.12.2024 while issuing notice, this Court stayed the filling up of the post of the Driver and the interim order has been continued since then.

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The respondent Nos. 2 to 5 has filed an affidavit-in-opposition. In the said affidavit-in-opposition so filed by the respondent Nos. 2 to 5, it was mentioned that 60 marks was fixed for viva voce which was distributed amongst the three members in 20 marks each and therefore there was no excessive mark allotted for viva voce. It was mentioned that in the High Court, the manner of assessment for the post of the Driver cannot be equated and there being no challenge to the advertisement, the petitioner cannot question the factum of not specifying the marks of different tests in the advertisement. It was mentioned that the predecessor of the deponent vide a letter dated 13.10.2022 only requested the DTO, South Salmara, Mankachar to undertake skill test. However, the concerned MVI on his own awarded marks in two components totaling to 100 marks i.e. 70 marks for driving skill test and 30 marks for traffic signal test. It was further stated

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that the petitioner herein got 45 out of 70 and the selected candidate got 30 out of 70 in the driving test and there was nothing to be shocked and arbitrary in earmarking 60 marks for viva voce followed by distribution of the said amongst the three members as 20 marks each.

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It was also mentioned that all the candidates were awarded marks based upon their replies/answers to the questions put to them, their presentation, attitude, manner and demeanor before the Selection Board. It was also mentioned that other candidates had secured more marks than the petitioner. At paragraph No.10 of the said affidavit, it was mentioned that as the petitioner was driving 108 ambulance for the last 11 years which he stated during his viva voce held on 05.12.2023 and as the petitioner did not drive any official or private vehicle for the last 11 years, the petitioner was not well accustomed to certain ways of driving inasmuch as an ambulance usually gets some relaxation under the traffic rules and regulations being on emergency duty and driving 108 ambulance for such a long period creates doubt in the mind of the Selection Board as to whether he would be having the qualities of driving official vehicle of a Judicial Officer which requires utmost care, responsibility and has to observe some restrictions as per norms/protocols of the District Judiciary.

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The respondent Nos. 2 to 5 to the affidavit-in-opposition have enclosed various advertisements so issued by the different District Judiciary establishment within Assam for the post of Driver to substantiate that in all these advertisements, there is no mention about what marks is to be allocated.

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This Court has further taken note of the communication dated

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13.10.2022 which was issued by the respondent No.5 to the District Transport Officer wherein the District Transport Officer was asked to shortlist candidates suitable for the post of Driver in the establishment by carrying out a driving skill test.

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The respondent No.6 has also filed an affidavit-in-opposition whereby the respondent No.6 justified his selection.

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To the affidavit-in-opposition filed by the official respondents as well as by the private respondent, affidavit-in-replies were filed by the petitioner stating inter alia that the petitioner apart from driving 108 ambulance vehicle had also been driving LMV/four wheeler private vehicles including of his elder brother. It was also mentioned that the petitioner has other skills apart from driving skills as is required for a driver such as road sense, road safety, driving habit, location, GPS navigation knowledge etc. for which he had been awarded 25 out of 30 marks whereas the respondent No.6 had been awarded only 10 marks in traffic signal test. It was also mentioned that as the petitioner had an amicable temperament, personality, behavior and attitude, he had been driving 108 ambulance for the last 11 years without any complaint from any quarter and the said fact was apparent from the records.

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This Court while hearing the matter also seen the records. Upon perusal of the records, it is seen that the three members of the selection board have awarded the respondent No.6 with 18, 18 and 19 marks respectively totaling to 55 out of 60 whereas the petitioner has been awarded only 20 marks in aggregate.

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In the backdrop of the above, this Court has duly heard the learned counsels appearing on behalf of the parties and duly taken note of their respective submissions.

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From the above discussions, it would be seen that the advertisement which was issued did not contain the marks to be allocated to the two tests to be conducted i.e. driving test as well as to the viva voce test. There is also no materials on record to show that immediately prior or post the advertisement, there was any resolution adopted by the Selection Board as to how marks would be allocated towards the driving test as well as towards the viva voce test. In fact, a perusal of the communication dated 13.10.2022, issued by the respondent No.5 enclosed as Annexure-R2 to the affidavit-in-opposition of the respondent Nos. 2 to 5 also do not mention as to on what basis or what marks, the said driving test is required to be conducted.

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From a reading of the affidavit-in-opposition filed by the respondent No.5 and the communication issued dated 13.10.2022, it appears that once the driving test is conducted, the selection will be made on the basis of viva voce. Though the respondent Nos. 2 to 5 in their affidavit-in-opposition have enclosed various advertisements issued by the various establishment of the District Judiciary to show that in all such advertisements there is no mention of marks to be allocated towards the driving test as well as the viva voce but there appears to be no justification as to why the selection procedure was not formulated prior to the advertisement or even immediately post the advertisement. There is also no justification why 60 marks was allocated for viva voce on 18.11.2024 and not any other marks.

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In the case of Kiran Gupta and Others Vs. The State of U.P. and Others reported in (2000) 7 SCC 719 , the Supreme Court observed that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and a question of permissible percentage of marks for an interview test has to be decided on the facts of each case.

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In a recent judgment of the Supreme Court in the case of State of Assam and Others Vs. Arabinda Rabha and Others reported in (2025) SCC Online SC 523 , the Supreme Court observed that it cannot be gainsaid that the factors of “when”, “which”, “what”, “who” and “how” that are associated with the recruitment/selection process is the prerogative of the recruiting authority and the selectors; however, at the same time the process has to be conducted consistent with the statutory provisions governing the same, if any, as well as the principles of absolute fairness and complete nonarbitrariness. The Supreme Court observed that what would be the various stages the candidates aspiring for appointment have to pass through in order to be placed in the select list, who would be the selectors and how the weightage is to be given to each of the testing methods, a great deal of credence is lent to the process if it is fairly and transparently conducted in accordance with the rules, whatever be its source, without the slightest hint of any bias or favoritism on nepotism. It was observed that normally it is not for the Courts to interfere unless the process smacks of malafide. The Supreme Court observed that taking into account that a right to be considered for public employment being a Fundamental Right, it would be safe and prudent to have recruitment rules to govern the process of selection so that the best possible talent is appointed in public service.

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Paragraph 35 of the said judgment being relevant is reproduced herein under:

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“ 35. It cannot be gainsaid that the factors of “when”, “which”, “what”, “who” and “how” that are associated with a recruitment/selection process is the prerogative of the recruiting authority and the selectors; however, at the same time, the process has to be conducted consistent with statutory provisions governing the same, if any, as well as principles of absolute fairness and complete non-arbitrariness. Though it is true that the law does not postulate a fetter on the authority of the employer-State and it is within the domain of the Government when to initiate a process of recruitment for public employment, either according to recruitment rules or even in the absence thereof, it is for the Government of the day to decide in which manner it proposes to conduct selection, what would be the various stages the candidates aspiring for appointment have to pass through in order to be placed in the select list, who would be the selectors, and how weightage is to be given to each of the testing methods, a great deal of credence is lent to a process if it is fairly and transparently conducted in accordance with rules, whatever be its source, without the slightest hint of any bias or favouritism or nepotism. Normally, it is not for the courts to interfere unless the process smacks of mala fides. However, the right to be considered for public employment being a Fundamental Right, it would be safe and prudent to have recruitment rules to govern the process of selection so that the best possible talent is appointed in public service. Obviously, assessing the merit of the candidates aspiring for public employment on the basis of a prescribed standard would not only provide a level playing field for each of them, the excellence of any institution to which the appointment is to be made would depend directly on the proficiency of its members/staff and that would, in turn, depend on the quality and merit of those who offer themselves for selection and ultimately get selected, necessitating the selection to be conducted without any hidden taint or masked mala fides. Last but not the least, having regard to present times when corruption has been held to be a walk of life by certain

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responsible citizens of the country, it would have been desirable if the process of recruitment of 104 Constables were conducted after framing of recruitment rules and also prescribing a written examination to keep the process absolutely above board.”

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This Court further finds it also relevant to take into consideration the submissions so made by the learned counsels appearing on behalf of the respondents that there is no challenge to the advertisement on the ground that the selection process have not been mentioned in advertisement and how much marks would be awarded for each. It is the opinion of this Court that there is no requirement of challenging the advertisement if the selection process is in the teeth of Articles 14 and 16 of the Constitution.

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In the instant case, it would be seen that neither prior or immediately post the advertisement, the Selection Board envisaged what would be the marks to be allocated for each of the test, i.e. Driving Test as well as the viva voce. It further appears from the very records, reference to which was made in the order dated 01.05.2025 that it was only on 18.11.2024 after ascertaining what marks have been allocated by the District Transport Authority, the Selection Board then decided that they would have 60 marks on account of viva voce. There is no reason why 60 marks was required. No doubt, the respondent authorities had the right to choose how much marks are required to be given but the timing of fixing the marks of 60 at a stage after learning that the marks obtained by the candidates smacks of malice in law. This Court is of the opinion that when a selection process is initiated, the process has to be fair and transparent. Transparency is the hall mark of a valid selection process. The non-fixing of the method of selection prior or

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immediately after the advertisement and the allocation of 60 marks at this fag end of the selection proceedings do not reflect that the selection proceedings was conducted in a fair and transparent method. Lack of fairness and transparency violates the mandate of Articles 14 and 16 of the Constitution. Accordingly, the entire selection process is required to be interfered including the order of appointment of the respondent No.6 which is impugned in the instant proceedings.

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This Court further takes note of the submission of Mr. B. D. Das, the learned Senior counsel appearing on behalf of the petitioner to the effect that the petitioner herein as on date is nearing 43 years and as such, if the selection proceedings is interfered with, the petitioner should be granted age relaxation upon issuance of a fresh advertisement.

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In view of the above analysis and determination, this Court disposes of the instant writ petition with the following observations and directions:

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(i) The selection to the post of the Driver in the establishment of the Chief Judicial Magistrate, South Salmara, Mankachar dated 05.12.2024 is interfered with.

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(ii) The notification dated 05.12.2024 by which the respondent No.6 herein was selected for the post of the driver is interfered with.

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(iii) The impugned order bearing No.250 dated 09.12.2024 issued by the Chief Judicial Magistrate, South Salmara, Mankachar is interfered with.

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(iv) The respondent No.5 is directed to carry out a fresh selection to the post of the Driver. In doing so, the Selection Board of the establishment of

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the respondent No.5 shall issue an advertisement which apart from containing the various other details, shall mention the selection process and the marks to be allocated against such selection process.

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(v) The petitioner along with other eligible candidates who had participated in the selection process pursuant to the advertisement dated 10.04.2023 shall be granted appropriate age relaxation.

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(vi) Interim order passed on 11.12.2024 stands vacated.

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JUDGE

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Comparing Assistant

Parvez Ali Ahmed v. the State of Assam and 5 Ors.

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Parvez Ali Ahmed v. the State of Assam and 5 Ors.

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